Kelly v. Topeka Housing Authority , 147 F. App'x 723 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
August 30, 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
LAWRENCE L. KELLY,
Plaintiff-Appellant,
v. No. 04-3448
(D.C. No. 04-CV-4069-JAR)
TOPEKA HOUSING AUTHORITY, (D. Kan.)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HENRY, ANDERSON , and TYMKOVICH , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff Lawrence L. Kelly, proceeding pro se, appeals the dismissal of this
action seeking money damages from defendant Topeka Housing Authority. We
affirm.
Background
Mr. Kelly resided with his adult son Michael in the Oakwood Manor
Apartments. His rent was paid by defendant under the federal program for
low-income housing assistance. See 42 U.S.C. § 1437f. When Michael was
arrested and charged with drug-related offenses, including possession, Mr. Kelly
and Michael were evicted from the apartment. Oakwood Manor, a landlord
receiving rent payments from a federally subsidized source, had cause to
terminate the tenancy if a member of the tenant’s household engaged in any
“drug-related criminal activity on or near [the rented] premises.” 42 U.S.C.
1437f(d)(1)(B)(iii). Defendant ceased making Mr. Kelly’s rent payments because
of Michael’s drug-related offenses. See 24 C.F.R. §§ 982.551(l);
982.553(b)(1)(i).
Mr. Kelly sued, contending that his eviction was contrary to federal
constitutional and statutory law. He maintained that his son was not on his
premises at the time he was accused of possessing drugs; his son was not
convicted on any drug charge, but pled not guilty and was placed on diversion;
and the eviction was in retaliation for Mr. Kelly’s prior complaints against
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defendant. He alleged that he sustained money damages as a result of the
eviction.
The district court liberally construed Mr. Kelly’s complaint to allege
several causes of action, held that none stated a claim upon which relief can be
granted, and dismissed the action without prejudice under Fed. R. Civ. P.
12(b)(6). On appeal, Mr. Kelly reasserts his claims made in the district court. 1
Appellate Jurisdiction
We must first determine whether this court has jurisdiction over the appeal.
Defendant filed a motion to dismiss for lack of jurisdiction on the ground that the
district court merely dismissed Mr. Kelly’s complaint without prejudice and did
not dismiss the entire action. The district court’s judgment stated that the action
was dismissed, as did its memorandum order of dismissal. R. doc. 25; id. doc. 24,
at 10. Our review of those documents convinces us that the district court
intended to dismiss the entire action, and we therefore have jurisdiction to hear
the appeal. Mobley v. McCormick , 40 F.3d 337, 339-40 (10th Cir. 1994); 28
U.S.C. § 1291.
1
Mr. Kelly has alleged that the district judge ruled against him because she
was bribed to do so. This unsupported invective is not persuasive.
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Merits
We review de novo an order dismissing a complaint for failure to state a
claim for relief under Rule 12(b)(6). Hartman v. Kickapoo Tribe Gaming
Comm’n , 319 F.3d 1230, 1234 (10th Cir. 2003). “We accept as true all
well-pleaded facts, as distinguished from conclusory allegations, and view those
facts in the light most favorable to the nonmoving party.” Maher v. Durango
Metals, Inc. , 144 F.3d 1302, 1304 (10th Cir. 1998). Dismissal of a complaint
pursuant to Rule 12(b)(6) will be upheld only if “it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him
to relief.” Conley v. Gibson , 355 U.S. 41, 45-46 (1957). Mr. Kelly is
representing himself on appeal, so we construe his pleadings liberally. Haines v.
Kerner , 404 U.S. 519, 520-21 (1972).
We have carefully reviewed the record on appeal, as well as the briefs
submitted by the parties. Applying the standards set out above, we affirm the
judgment of dismissal substantially for the reasons stated in the district court’s
comprehensive memorandum order and opinion granting defendant’s motion to
dismiss, dated October 13, 2004.
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Defendant’s motion to dismiss the appeal is denied. The judgment of the
district court is AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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